The 2004 Cagliari Accident and the European Court of Human Rights Decision

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The 2004 Cagliari Accident and the European Court of Human Rights Decision

59TH ANNUAL CONFERENCE, Singapore, 30 March – 3 April 2020

WP No. 169

The 2004 Cagliari Accident and the European Court of Human Rights Decision

Presented by ANACNA

 

IMPORTANT NOTE: The IFATCA Annual Conference 2020 in Singapore was cancelled. The present working paper was never discussed at Conference by the committee(s). Resolutions presented by this working paper (if any) were never voted.

Summary

This Information Paper will provide the update on the aftermath of the 2004 Cagliari (Italy) accident till the recent decision of the European Court of Human Rights.

Introduction

1.1. On February 24th 2004, a Cessna 500 Citation I, hospital flight marked OE-FAN and callsign CIT 124, flying from Rome Ciampino (LIRA) had a Controlled Flight Into Terrain (CFIT) while performing a Visual Approach to Cagliari Elmas (LIEE).

1.2. All the three proceeding stages (First instance court, Court of Appeal, Court of Cassation) sentenced the two ATCOs working in Cagliari APP that night – Antonio Caponigri and Bruno Scatena – guilty of multiple manslaughter and culpable disaster caused by negligence.

1.3. Shortly after this sentence, the two ATCOs submitted an application at the European Court of Human Rights (ECHR), claiming that Italy violated Article 6 of the Convention (the so-called “Right to a fair trial”). On December 17th 2019 the ECHR declared the application “Case of Scatena and Caponigri v. Italy” inadmissible.

Discussion

2.1. The Event

2.1.1. After Cagliari APP provided the weather information, it cleared CIT 124 to continue the descent down to 5000 feet, to carry out the ILS procedure for a landing on runway 32. The pilot requested then the clearance to perform a Visual Approach.

2.1.2. At 05:43 the flight crew stated: “CIT 124, we have the field in sight requesting visual approach.” Cagliari APP then asked CIT 124 if they were able to maintain obstacle clearance. The answer was affirmative.

2.1.3. Three minutes later, Cagliari APP informed CIT 124 to continue the descent not below 2500 feet (as to adhere to a written requirement established in the LoA between the Approach and the Tower) and contact the TWR for the further descent. The pilot contacted Cagliari Elmas TWR saying they were on Visual Approach. Elmas TWR responded by reporting the runway in use (32), wind conditions and asked to report when on short final. The crew read it back.

2.1.4. After two minutes, while descending over mountainous terrain, the flight collided with the side of Su Baccu Malu Mountain (elevation 3333 feet) killing all six occupants (three crew members and three passengers).


2.2. The Lawsuit

2.2.1. The ATCOs were accused and faced the legal proceedings. The Prosecutor asked a team of expert witnesses to provide a technical report, which stated that the two ATCOs followed the relevant technical regulation required at the time.

2.2.2. The judge decided not to take consideration of the technical report provided by the prosecutor and sentenced the two ATCOs for a two-year jail period. The Court of Appeal (2008) and the Court of Cassation (2011) later confirmed the first instance judgement.

2.2.3. The judiciary proceeding took into consideration a Circular which the National Regulator issued some years before, which required companies to collect all the relevant information about the orography of the area surrounding an airport before doing visual approaches at night time. This Circular was clearly not intended for ATCOs who, as we all know, have to provide air traffic control through all the rules included within the ICAO SARPs.

2.2.4. The ATCOs involved provided additional warning to the pilots asking them not to descend below a certain altitude, even during the Visual Approach, in order to comply with written requirements and asked confirmation about being in visual contact with the ground obstacles.

2.2.5. Nevertheless, they were found guilty for negligent behaviour that led to manslaughter and aeronautical disaster. The guilty verdict was all about having cleared, even though after the pilot’s request, a Night Visual Approach “without giving the pilot himself all the relevant information about the terrain orography” (Cit. “senza fornire al pilota stesso tutte le informazioni necessarie sull’orografia del terreno”) as prescribed, according to the judge’s opinion, by additional prescriptions included in a Circular which the National Regulator intended actually for other aviation subjects, not ATCOs.

2.2.6. The feeling of an unfair sentence was so high within the professionals’ community (both ATCOs and pilots) that the two ATCOs took the decision to submit an application to the ECHR against the sentence.


2.3. The Aftermath

2.3.1. The Italian Air Traffic Controllers Association ANACNA reacted immediately to the overwhelming blame culture that was surrounding the aviation community. Several meetings with all the stakeholders, IFATCA and ICAO included, led to the cancellation of the Visual Approach procedure in Italy, which lasted years.

2.3.2. Only in 2017 the Visual Approach was reintroduced in Italy, but during day time only. At night time it is still forbidden.

2.3.3. The sentence stressed the blame culture felt by the aviation professional. In such an environment, it’s not easy to push ATCOs to fulfil the Safety Management System which requires a constant safety reporting. The non-punitive approach is still far to be reached.

2.3.4. Several steps have been taken in the meanwhile. While, in 2004, the aeronautical regulatory framework covered only some of the major ICAO SARPs, since 2014 the Italian Navigation Code recognises that ANSP Operational Manuals, training schemes and other technical rules are fully part of the national regulation.

2.3.5. All these steps were possible thanks to the constant work of ANACNA as a steering committee among aviation stakeholders.

2.3.6. But, on December 2019 the European Court of Human Rights declared the application “Case of Scatena and Caponigri v. Italy” inadmissible.

The Court stated that its evaluation would have configured as a fourth proceeding stage, which is not admissible by the European Convention:

“The Court finds that, insofar as the applicants complain of the domestic courts’ assessment of the evidence and interpretation of the law and challenges the outcome of the proceeding, the application is of a ‘fourth-instance’ nature. The applicants were able to make submissions before the courts which answered those submissions in decisions that do not appear arbitrary or manifestly unreasonable, and there is nothing to suggest that the proceedings were otherwise unfair.

Accordingly, these complaints are manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention.”

2.3.7. Eventually, even though ANACNA finds the sentence of the Italian legislation unfair, the sentence itself followed the Italian laws, which allow judges and magistrates to disregard technical reports and regulation whenever other more prominent laws overcome the technical ones.

2.3.8. ANACNA does not agree at this point with the Italian situation and still believes ATCOs should behave, under normal conditions, within the technical regulatory framework only where responsibilities are well defined among all the actors.

2.3.9. Still the ECHR decision is, in our opinion, an important milestone in understanding the legislation overarching the aeronautical, or more broadly the transportation world.

2.3.10. This information Paper aims at raising the correct awareness among ATCOs about the fact that, in some countries, the judiciary system might evaluate an aviation accident outside the technical boundaries. And that no other opinion might change this, even if it is a so-called Human Right Court.

2.3.11. The Cagliari case showed how the Italian courts permit a judge who doesn’t take care of the technical regulations, to act as Iudex peritus peritorum (Latin for “The Judge is the expert among the experts”). And, more important, the European Human Rights Court established that, whenever this is the National law, they cannot interfere with it.

Conclusions

3.1.1. The European Court of Human Rights stated that it cannot revise a proceeding when it has correctly followed the National regulations, even though the technical report was not taken into consideration.

3.1.2. This means that even un unfair sentence, like the conviction of the two ATCOs held responsible for the 2004 Cagliari accident, is acceptable from a legislative point of view.

3.1.3. ANACNA expresses its sympathy to our colleagues involved in the Cagliari accident and wants to make IFATCA and all the MA aware that a lot of work is still to be done.

3.1.4. ANACNA strongly recommends the MAs to clearly verify the state of the art of the local regulations and how they cohabit with the international regulation. This is to make sure that the possibility of another Cagliari case is as remote as possible.

Recommendations

4.1. It is recommended this to be accepted as Information Paper.

Last Update: October 2, 2020  

July 19, 2020   286   Jean-Francois Lepage    2020    

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